G.R. No. 190566.December 11, 2013.

*
MARK JEROME S. MAGLALANG, petitioner, vs.
PHILIPPINE AMUSEMENT AND GAMING
CORPORATION (PAGCOR), as represented by its
incumbent Chairman EFRAIM GENUINO, respondent.

Remedial Law Civil Procedure Exhaustion of Administrative

Remedies Under the doctrine of exhaustion of administrative
reme

_______________

* FIRST DIVISION.

473

dies, before a party is allowed to seek the intervention of the court,

he or she should have availed himself or herself of all the means of
administrative processes afforded him or her.Our ruling
in Public Hearing Committee of the Laguna Lake Development
Authority v. SM Prime Holdings, Inc., 631 SCRA 73 (2010), on the
doctrine of exhaustion of administrative remedies is instructive,
to wit: Under the doctrine of exhaustion of administrative
remedies, before a party is allowed to seek the intervention of the
court, he or she should have availed himself or herself of all the
means of administrative processes afforded him or her. Hence, if
resort to a remedy within the administrative machinery can still
be made by giving the administrative officer concerned every
opportunity to decide on a matter that comes within his or her
jurisdiction, then such remedy should be exhausted first before
the courts judicial power can be sought. The premature
invocation of the intervention of the court is fatal to ones cause of
action. The doctrine of exhaustion of administrative remedies is
based on practical and legal reasons. The availment of
administrative remedy entails lesser expenses and provides for a
speedier disposition of controversies. Furthermore, the courts of
justice, for reasons of comity and convenience, will shy away from
a dispute until the system of administrative redress has been
completed and complied with, so as to give the administrative
agency concerned every opportunity to correct its error and
dispose of the case.
 Same Same Same The doctrine of exhaustion of
administrative remedies is not absolute as it admits of exceptions.
The doctrine of exhaustion of administrative remedies is not
absolute as it admits of the following exceptions: (1) when there is
a violation of due process (2) when the issue involved is purely a
legal question (3) when the administrative action is patently
illegal amounting to lack or excess of jurisdiction (4) when there
is estoppel on the part of the administrative agency concerned (5)
when there is irreparable injury (6) when the respondent is a
department secretary whose acts as analter egoof the President
bears the implied and assumed approval of the latter (7) when to
require exhaustion of administrative remedies would be
unreasonable (8) when it would amount to a nullification of a
claim (9) when the subject matter is a private land in land case
proceedings (10) when the rule does not provide a plain, speedy
and adequate remedy, and (11) when there are circumstances
indicating the urgency of judicial intervention, and unreasonable
delay would greatly prejudice the complainant (12) where no
ad

474

ministrative review is provided by law (13) where the rule of

qualified political agency applies and (14) where the issue of non
exhaustion of administrative remedies has been rendered moot.
Same Special Civil Actions Certiorari A special civil action
for certiorari under Rule 65 lies only when there is no appeal, or
plain, speedy and adequate remedy in the ordinary course of law.
It bears stressing that the judicial recourse petitioner availed of
in this case before the CA is a special civil action for certiorari
ascribing grave abuse of discretion, amounting to lack or excess of
jurisdiction on the part of PAGCOR, not an appeal. Suffice it to
state that an appeal and a special civil action such as certiorari
under Rule 65 are entirely distinct and separate from each other.
One cannot file petition for certiorari under Rule 65 of the Rules
where appeal is available, even if the ground availed of is grave
abuse of discretion. A special civil action for certiorari under Rule
65 lies only when there is no appeal, or plain, speedy and
adequate remedy in the ordinary course of law. Certiorari cannot
be allowed when a party to a case fails to appeal a judgment
despite the availability of that remedy, as the same should not be
a substitute for the lost remedy of appeal. The remedies of appeal
and certiorari are mutually exclusive and not alternative or
successive.
Same Same Same As a rule, a petition for certiorari under
Rule 65 is valid only when the question involved is an error of
jurisdiction, or when there is grave abuse of discretion amounting
to lack or excess of jurisdiction on the part of the court or tribunals
exercising quasijudicial functions.As a rule, a petition for
certiorari under Rule 65 is valid only when the question involved
is an error of jurisdiction, or when there is grave abuse of
discretion amounting to lack or excess of jurisdiction on the part
of the court or tribunals exercising quasijudicial functions.
Hence, courts exercising certiorari jurisdiction should refrain from
reviewing factual assessments of the respondent court or agency.
Occasionally, however, they are constrained to wade into factual
matters when the evidence on record does not support those
factual findings or when too much is concluded, inferred or
deduced from the bare or incomplete facts appearing on record.
Considering the circumstances and since this Court is not a trier
of facts,remand of this case to the CA for its judicious resolution
is in order.

475

PETITION for review on certiorari of the resolutions of the

Court of Appeals.
The facts are stated in the opinion of the Court.
Maglalang, Lagman and Maglalang Law Offices for
petitioner.
Roderick R. Consolacion, Arnold Ferdinand C. Salvosa,
Bernadette P. De GuzmanChua for respondent.

VILLARAMA, JR., J.:
Before this Court is a petition[1]for review on certiorari
under Rule 45 of the 1997 Rules of Civil Procedure, as
amended, seeking the reversal of the Resolution[2] dated
September 30, 2009 issued by the Court of Appeals (CA) in
CAG.R. SP No. 110048, which outrightly dismissed the
petition for certiorari filed by herein petitioner Mark
Jerome S. Maglalang (petitioner). Also assailed is the
appellate courts Resolution[3] dated November 26, 2009
which denied petitioners motion for reconsideration.
The facts follow.
Petitioner was a teller at the Casino Filipino, Angeles
City Branch, Angeles City, which was operated by
respondent Philippine Amusement and Gaming
Corporation (PAGCOR), a governmentowned or controlled
corporation existing by virtue of Presidential Decree (P.D.)
No. 1869.[4]

_______________
[1] Rollo, pp. 934.
 [2] Id., at p. 35. Penned by Associate Justice Josefina GuevaraSalonga
with Associate Justices Celia C. LibreaLeagogo and Priscilla J. Baltazar
Padilla, concurring.
[3] Id., at pp. 3638.
[4] PRESIDENTIAL DECREE NO. 1869 CONSOLIDATING AND AMENDING
PRESIDENTIAL DECREE NOS. 1067A, 1067B, 1067C, 1399

476

Petitioner alleged that in the afternoon of December 13,

2008, while he was performing his functions as teller, a
lady customer identified later as one Cecilia
Nakasato[5] (Cecilia) approached him in his booth and
handed to him an undetermined amount of cash consisting
of mixed P1,000.00 and P500.00 bills. There were 45
P1,000.00 and ten P500.00 bills for the total amount of
P50,000.00. Following casino procedure, petitioner laid the
bills on the spreading board. However, he erroneously
spread the bills into only four clusters instead of five
clusters worth P10,000.00 per cluster. He then placed
markers for P10,000.00 each cluster of cash and declared
the total amount of P40,000.00 to Cecilia. Perplexed,
Cecilia asked petitioner why the latter only dished out
P40,000.00. She then pointed to the first cluster of bills and
requested petitioner to check the first cluster which she
observed to be thicker than the others. Petitioner
performed a recount and found that the said cluster
contained 20 pieces of P1,000.00 bills. Petitioner apologized
to Cecilia and rectified the error by declaring the full and
correct amount handed to him by the latter. Petitioner,
however, averred that Cecilia accused him of trying to
shortchange her and that petitioner tried to deliberately
fool her of her money. Petitioner tried to explain, but
Cecilia allegedly continued to berate and curse him. To
ease the tension, petitioner was asked to take a break.
After ten minutes, petitioner returned to his booth.
However, Cecilia allegedly showed up and continued to
berate petitioner. As a result, the two of them were invited
to the casinos Internal Security Office in order to air their
respective sides. Thereafter, petitioner was required to file
an Incident Report which he submitted on the same day of
the incident.[6]

_______________
AND 1632, RELATIVE TO THE FRANCHISE AND POWERS OF THE PHILIPPINE
AMUSEMENT AND GAMING CORPORATION (PAGCOR).
[5] Also referred to as Cecilia Alfonso in other pleadings and
documents.
 [6] Supra note 1, at pp. 1216.

477

On January 8, 2009, petitioner received a

Memorandum[7] issued by the casinos Branch Manager,
Alexander Ozaeta, informing him that he was being
charged with Discourtesy towards a casino customer and
directing him to explain within 72 hours upon receipt of the
memorandum why he should not be sanctioned or
dismissed. In compliance therewith, petitioner submitted a
letterexplanation[8]dated January 10, 2009.
On March 31, 2009, petitioner received another
Memorandum[9] dated March 19, 2009, stating that the
Board of Directors of PAGCOR found him guilty of
Discourtesy towards a casino customer and imposed on him
a 30day suspension for this first offense. Aggrieved, on
April 2, 2009, petitioner filed a Motion for
Reconsideration[10] seeking a reversal of the boards
decision and further prayed in the alternative that if he is
indeed found guilty as charged, the penalty be only a
reprimand as it is the appropriate penalty. During the
pendency of said motion, petitioner also filed a Motion for
Production[11] dated April 20, 2009, praying that he be
furnished with copies of documents relative to the case
including the recommendation of the investigating
committee and the Decision/Resolution of the Board
supposedly containing the latters factual findings. In a
letterreply[12] dated June 2, 2009, one Atty. Carlos R.
Bautista, Jr. who did not indicate his authority therein to
represent PAGCOR, denied the said motion. Petitioner
received said letterreply on June 17, 2009.
Subsequently, on June 18, 2009, PAGCOR issued a
Memorandum[13] dated June 18, 2009 practically
reiterating the con

_______________
[7] Id., at p. 91.
[8] Id., at pp. 9294.
[9] Id., at p. 95.
[10] Id., at pp. 96100.
[11] Id., at pp. 106107.
[12] Id., at pp. 108110.
[13] Id., at p. 104.

478
tents of its March 19, 2009 Memorandum. Attached
therewith is another Memorandum[14] dated June 8, 2009
issued by PAGCORs Assistant Vice President for Human
Resource and Development, Atty. Lizette F. Mortel,
informing petitioner that the Board of Directors in its
meeting on May 13, 2009 resolved to deny his appeal for
reconsideration for lack of merit. Petitioner received said
memoranda on the same date of June 18, 2009.
On August 17, 2009, petitioner filed a petition[15] for
certiorari under Rule 65 of the 1997 Rules of Civil
Procedure, as amended, before the CA, averring that there
is no evidence, much less factual and legal basis to support
the finding of guilt against him. Moreover, petitioner
ascribed grave abuse of discretion amounting to lack or
excess of jurisdiction to the acts of PAGCOR in adjudging
him guilty of the charge, in failing to observe the proper
procedure in the rendition of its decision and in imposing
the harsh penalty of a 30day suspension. Justifying his
recourse to the CA, petitioner explained that he did not
appeal to the Civil Service Commission (CSC) because the
penalty imposed on him was only a 30day suspension
which is not within the CSCs appellate jurisdiction. He
also claimed that discourtesy in the performance of official
duties is classified as a light offense which is punishable
only by reprimand.
In its assailed Resolution[16]dated September 30, 2009,
the CA outrightly dismissed the petition for certiorari for
being premature as petitioner failed to exhaust
administrative remedies before seeking recourse from the
CA. Invoking Section 2(1), Article IXB of the 1987
Constitution,[17]the CA held

_______________
[14] Id., at p. 105.
[15] Id., at pp. 3956.
[16] Supra note 2.
[17] Sec. 2(1), Article IXB of the 1987 Constitution provides:
Sec. 2. (1) The Civil Service embraces all branches, subdivisions,
instrumentalities, and agencies of the Government,

479

that the CSC has jurisdiction over issues involving the

employeremployee relationship in all branches,
subdivisions, instrumentalities and agencies of the
Government, including governmentowned or controlled
corporations with original charters such as PAGCOR.
Petitioner filed his Motion for Reconsideration[18] which
the CA denied in the assailed Resolution[19] dated
November 26, 2009. In denying the said motion, the CA
relied on this Courts ruling in Duty Free Philippines v.
Mojica[20]citingPhilippine Amusement and Gaming Corp.
v. CA,[21]where this Court held as follows:

It is now settled that, conformably to Article IXB, Section 2(1),

[of the 1987 Constitution] governmentowned or controlled
corporations shall be considered part of the Civil Service only if
they have original charters, as distinguished from those created
under general law.
PAGCOR belongs to the Civil Service because it was created
directly by PD 1869 on July 11, 1983. Consequently, controversies
concerning the relations of the employee with the management of
PAGCOR should come under the jurisdiction of the Merit System
Protection Board and the Civil Service Commission, conformably
to the Administrative Code of 1987.
Section 16(2) of the said Code vest[s] in the Merit System
Protection Board the powerinter aliato:
a)Hear and decide on appeal administrative cases involving
officials and employees of the Civil Service. Its decision shall be
final except those involving dismissal or separation from the
service which may be appealed to the Commission.

_______________
including governmentowned or controlled corporations with original
charters.
[18] Rollo, pp. 8287.
[19] Supra note 3.
[20] 508 Phil. 726, 732 471 SCRA 776, 783 (2005).
[21] 279 Phil. 203, 206207 202 SCRA 191, 194 (1991).

480

Hence, this petition where petitioner argues that the CA

committed grave and substantial error of judgment

1. IN OUTRIGHTLY DISMISSING THE PETITION FOR

CERTIORARI FILED BY PETITIONER AND IN DENYING
THE LATTERS MOTION FOR RECONSIDERATION[]
2. IN RULING THAT THE CIVIL SERVICE COMMISSION HAS
APPELLATE JURISDICTION OVER THE SUSPENSION OF
THE PETITIONER DESPITE THE FACT THAT THE
PENALTY INVOLVED IS NOT MORE THAN THIRTY (30)
DAYS[]
3. IN RESOLVING THE PETITION FOR CERTIORARI FILED
BY PETITIONER IN A MANNER WHICH IS UTTERLY
 CONTRARY TO LAW AND JURISPRUDENCE[]
4. IN UNJUSTIFIABLY REFUSING TO RENDER A DECISION
AS TO THE PROPRIETY OR VALIDITY OF THE
SUSPENSION OF THE PETITIONER BY THE
RESPONDENT[]
5. IN UNDULY REFUSING TO RENDER A DECISION
DECLARING THAT THE ASSAILED
DECISIONS/RESOLUTIONS OF THE RESPONDENT ARE
NOT SUPPORTED BY THE EVIDENCE ON RECORD[ AND]
6. IN UNJUSTIFIABLY REFUSING TO RENDER A DECISION
DECLARING THAT THE ASSAILED
DECISIONS/RESOLUTIONS OF RESPONDENT WERE
ISSUED WITH GRAVE ABUSE OF DISCRETION
AMOUNTING TO LACK OR EXCESS OF JURISDICTION.
[22]

Petitioner claims that the CA clearly overlooked the

applicable laws and jurisprudence that provide that when
the penalty involved in an administrative case is
suspension for

_______________
[22] Supra note 1, at pp. 2021.

481

not more than 30 days, the CSC has no appellate

jurisdiction over the said administrative case. As authority,
petitioner invokes our ruling in Geronga v. Hon.
Varela[23]which cited Section 47,[24]Chapter 1, Subtitle A,
Title I, Book V of Executive Order (E.O.) No. 292 otherwise
known as The Administrative Code of 1987. Said Section
47 provides that the CSC may entertain appeals only,
among others, from a penalty of suspension of more than
30 days. Petitioner asserts that his case, involving a 30day
suspension penalty, is not appealable to the CSC. Thus, he
submits that his case was properly brought before the CA
via a petition for certiorari.[25]
On the other hand, PAGCOR alleges that petitioner
intentionally omitted relevant matters in his statement of
facts. PAGCOR essentially claims that petitioner refused to
apologize to Cecilia that he treated Cecilias complaint
with arrogance and that before taking the aforementioned
10minute break, petitioner slammed the cash to the
counter window in giving it back to the customer. PAGCOR
argues that the instant petition raises questions of fact
which are not reviewable in a petition for review on
certiorari. PAGCOR maintains that the CAs ruling was in
accordance with law and jurisprudence. Moreover,
PAGCOR counters that petitioners remedy of appeal is
limited as Section 37 of the Revised Uniform Rules on
Administrative Cases in the Civil Service provides that a
decision rendered by heads of agencies whereby a pen

_______________
[23] 570 Phil. 39, 47 546 SCRA 429, 438 (2008).
[24] Section 47 (1), Title 1(A), Book V of E.O. No. 292, pertinently reads:
SEC. 47. Disciplinary Jurisdiction.(1) The Commission shall
decide upon appeal all administrative disciplinary cases involving
the imposition of a penalty of suspension for more than thirty days,
or fine in an amount exceeding thirty days salary, demotion in rank
or salary or transfer, removal or dismissal from office. . . .
[25]Petitioners Memorandum dated December 29, 2011,Rollo, pp. 204
223.

482

alty of suspension for not more than 30 days is imposed

shall be final and executory. PAGCOR opines that such
intent of limiting appeals over such minor offenses is
elucidated in the Concurring Opinion of former Chief
Justice Reynato S. Puno inCSC v. Dacoycoy[26]and based
on the basic premise that appeal is merely a statutory
privilege. Lastly, PAGCOR submits that the 30day
suspension meted on petitioner is justified under its own
Code of Discipline.[27]
Prescinding from the foregoing, the sole question for
resolution is: Was the CA correct in outrightly dismissing
the petition for certiorari filed before it on the ground of
nonexhaustion of administrative remedies?
We resolve the question in the negative.
Our ruling in Public Hearing Committee of the Laguna
Lake Development Authority v. SM Prime Holdings, Inc.[28]
on the doctrine of exhaustion of administrative remedies is
instructive, to wit:

Under the doctrine of exhaustion of administrative remedies,

before a party is allowed to seek the intervention of the court, he
or she should have availed himself or herself of all the means of
administrative processes afforded him or her. Hence, if resort to a
remedy within the administrative machinery can still be made by
giving the administrative officer concerned every opportunity to
decide on a matter that comes within his or her jurisdiction, then
such remedy should be exhausted first before the courts judicial
power can be sought. The premature invocation of the
intervention of the court is fatal to ones cause of action. The
doctrine of exhaustion of administrative remedies is based on
practical and legal reasons. The

_______________
[26] 366 Phil. 86 306 SCRA 425 (1999).
[27]PAGCORs Memorandum dated November 8, 2011,Rollo, pp. 144165.
[28] G.R. No. 170599, September 22, 2010, 631 SCRA 73, 7980. Citations
omitted.

483

availment of administrative remedy entails lesser expenses and

provides for a speedier disposition of controversies. Furthermore,
the courts of justice, for reasons of comity and convenience, will
shy away from a dispute until the system of administrative
redress has been completed and complied with, so as to give the
administrative agency concerned every opportunity to correct its
error and dispose of the case.

However, the doctrine of exhaustion of administrative

remedies is not absolute as it admits of the following
exceptions:

(1) when there is a violation of due process (2) when the issue
involved is purely a legal question (3) when the administrative
action is patently illegal amounting to lack or excess of
jurisdiction (4) when there is estoppel on the part of the
administrative agency concerned (5) when there is irreparable
injury (6) when the respondent is a department secretary whose
acts as an alter ego of the President bears the implied and
assumed approval of the latter (7) when to require exhaustion of
administrative remedies would be unreasonable (8) when it
would amount to a nullification of a claim (9) when the subject
matter is a private land in land case proceedings (10) when the
rule does not provide a plain, speedy and adequate remedy, and
(11) when there are circumstances indicating the urgency of
judicial intervention, and unreasonable delay would greatly
prejudice the complainant (12) where no administrative
review is provided by law (13) where the rule of qualified
political agency applies and (14) where the issue of non
exhaustion of administrative remedies has been rendered moot.
[29]

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[29] Hongkong & Shanghai Banking Corp., Ltd. v. G.G. Sportswear
Mfg. Corp., 523 Phil. 245, 253254 489 SCRA 578, 585586 (2006), citing
Province of Zamboanga Del Norte v. Court of Appeals, 396 Phil. 709, 718
719 342 SCRA 549, 558559 (2000). Emphasis supplied.

484

The case before us falls squarely under exception number

12 since the law per se provides no administrative review
for administrative cases whereby an employee like
petitioner is covered by Civil Service law, rules and
regulations and penalized with a suspension for not more
than 30 days.
Section 37 (a) and (b) of P.D. No. 807, otherwise known
as theCivil Service Decree of the Philippines, provides for
the unavailability of any appeal:

Section 37. Disciplinary Jurisdiction.

(a) The Commission shall decide upon appeal all
administrative disciplinary cases involving the imposition
of a penalty of suspension for more than thirty days, or fine
in an amount exceeding thirty days salary, demotion in rank or
salary or transfer, removal or dismissal from Office. A complaint
may be filed directly with the Commission by a private citizen
against a government official or employee in which case it may
hear and decide the case or it may deputize any department or
agency or official or group of officials to conduct the investigation.
The results of the investigation shall be submitted to the
Commission with recommendation as to the penalty to be imposed
or other action to be taken.
(b) The heads of departments, agencies and
instrumentalities, provinces, cities and municipalities
shall have jurisdiction to investigate and decide matters
involving disciplinary action against officers and
employees under their jurisdiction. Their decisions shall
be final in case the penalty imposed is suspension for not
more than thirty daysor fine in an amount not exceeding thirty
days salary. In case the decision rendered by a bureau or
office head is appealable to the Commission, the same may
be initially appealed to the department and finally to the
Commission and pending appeal, the same shall be executory
except when the penalty is removal, in which case the same shall
be executory only after confirmation by the department head.
(Emphasis supplied.)

485

Similar provisions are reiterated in the aforequoted

Section 47[30] of E.O. No. 292 essentially providing that
cases of this sort are not appealable to the CSC.
 Correlatively, we are not unaware of the Concurring
Opinion of then Chief Justice Puno inCSC v. Dacoycoy,[31]
where he opined, to wit:

_______________
[30]Section 47 (1) and (2), Title 1(A), Book V of E.O. No. 292, provides:
SEC. 47. Disciplinary Jurisdiction.(1)The Commission shall
decide upon appeal all administrative disciplinary cases
involving the imposition of a penalty of suspension for more
than thirty days, or fine in an amount exceeding thirty days salary,
demotion in rank or salary or transfer, removal or dismissal from
office. A complaint may be filed directly with the Commission by a
private citizen against a government official or employee in which
case it may hear and decide the case or it may deputize any
department or agency or official or group of officials to conduct the
investigation. The results of the investigation shall be submitted to
the Commission with recommendation as to the penalty to be imposed
or other action to be taken.
(2) The Secretaries and heads of agencies and
instrumentalities, provinces, cities and municipalities shall
have jurisdiction to investigate and decide matters involving
disciplinary action against officers and employees under their
jurisdiction. Their decisions shall be final in case the penalty
imposed is suspension for not more than thirty days or fine in
an amount not exceeding thirty days salary. In case the decision
rendered by a bureau or office head is appealable to the
Commission, the same may be initially appealed to the department
and finally to the Commission and pending appeal, the same shall be
executory except when the penalty is removal, in which case the same
shall be executory only after confirmation by the Secretary concerned.
Emphasis supplied.
[31] Supra note 26, at pp. 116117 p. 461.

486

In truth, the doctrine barring appeal is not categorically

sanctioned by the Civil Service Law.For what the law declares as
final are decisions of heads of agencies involving suspension for
not more than thirty (30) days or fine in an amount not exceeding
thirty (30) days salary. But there is a clear policy reason for
declaring these decisions final. These decisions involve minor
offenses. They are numerous for they are the usual offenses
committed by government officials and employees. To allow their
multiple level appeal will doubtless overburden the quasijudicial
machinery of our administrative system and defeat the
expectation of fast and efficient action from these administrative
agencies.Nepotism, however, is not a petty offense. Its deleterious
effect on government cannot be overemphasized. And it is a
stubborn evil. The objective should be to eliminate nepotic acts,
hence, erroneous decisions allowing nepotism cannot be given
immunity from review, especially judicial review. It is thus non
sequitur to contend that since some decisions exonerating public
officials from minor offenses can not be appealed, ergo, even a
decision acquitting a government official from amajoroffense like
nepotism cannot also be appealed.

Nevertheless, decisions of administrative agencies which

are declared final and unappealable by law are still subject
to judicial review. In Republic of the Phils. v. Francisco,
[32]we held:

Since the decision of the Ombudsman suspending

respondents for one (1) month is final and unappealable, it
follows that the CA had no appellate jurisdiction to review, rectify
or reverse the same. The Ombudsman was not estopped from
asserting in this Court that the CA had no appellate jurisdiction
to review and reverse the decision of the Ombudsman via petition
for review under Rule 43 of the Rules of Court. This is not to say
that decisions of the Ombudsman cannot be ques

_______________
[32] 539 Phil. 433, 450 510 SCRA 377, 393394 (2006). Citations omitted
emphasis supplied.

487

tioned.Decisions of administrative or quasiadministrative

agencies which are declared by law final and unappealable
are subject to judicial review if they fail the test of
arbitrariness, or upon proof of gross abuse of discretion,
fraud or error of law. When such administrative or quasi
judicial bodies grossly misappreciate evidence of such nature as to
compel a contrary conclusion, the Court will not hesitate to reverse
the factual findings. Thus, the decision of the Ombudsman
may be reviewed, modified or reversed via petition
for certiorari under Rule 65 of the Rules of Court, on a
finding that it had no jurisdiction over the complaint, or of
grave abuse of discretion amounting to excess or lack of
jurisdiction.

It bears stressing that the judicial recourse petitioner

availed of in this case before the CA is a special civil action
for certiorari ascribing grave abuse of discretion,
amounting to lack or excess of jurisdiction on the part of
PAGCOR, not an appeal. Suffice it to state that an appeal
and a special civil action such as certiorari under Rule 65
are entirely distinct and separate from each other. One
cannot file petition for certiorari under Rule 65 of the Rules
where appeal is available, even if the ground availed of is
grave abuse of discretion. A special civil action for
certiorari under Rule 65 lies only when there is no appeal,
or plain, speedy and adequate remedy in the ordinary
course of law. Certiorari cannot be allowed when a party to
a case fails to appeal a judgment despite the availability of
that remedy, as the same should not be a substitute for the
lost remedy of appeal. The remedies of appeal and
certiorari are mutually exclusive and not alternative or
successive.[33]
In sum, there being no appeal or any plain, speedy, and
adequate remedy in the ordinary course of law in view of
petitioners allegation that PAGCOR has acted without or
in

_______________
[33]Tejano, Jr. v. Sandiganbayan, G.R. No. 161778, April 7, 2009, 584
SCRA 191, 211212.

488

excess of jurisdiction, or with grave abuse of discretion

amounting to lack or excess of jurisdiction, the CAs
outright dismissal of the petition for certiorari on the basis
of nonexhaustion of administrative remedies is bereft of
any legal standing and should therefore be set aside.
Finally, as a rule, a petition for certiorari under Rule 65
is valid only when the question involved is an error of
jurisdiction, or when there is grave abuse of discretion
amounting to lack or excess of jurisdiction on the part of
the court or tribunals exercising quasijudicial functions.
Hence, courts exercising certiorari jurisdiction should
refrain from reviewing factual assessments of the
respondent court or agency. Occasionally, however, they
are constrained to wade into factual matters when the
evidence on record does not support those factual findings
or when too much is concluded, inferred or deduced from
the bare or incomplete facts appearing on record.[34]
Considering the circumstances and since this Court is not a
trier of facts,[35] remand of this case to the CA for its
judicious resolution is in order.
WHEREFORE, the petition is PARTLY GRANTED.
The Resolutions dated September 30, 2009 and November
26, 2009 of the Court of Appeals in CAG.R. SP No. 110048
are hereby REVERSED and SET ASIDE. The instant case
 is REMANDED to the Court of Appeals for further
proceedings.
No pronouncement as to costs.
SO ORDERED.

Sereno (CJ., Chairperson), LeonardoDe Castro,

Bersamin and Reyes, JJ., concur.

_______________

[34]Lambert Pawnbrokers and Jewelry Corporation v. Binamira, G.R.
No. 170464, July 12, 2010, 624 SCRA 705, 714715, citingPascua v. NLRC
(3rdDiv.), 351 Phil. 48, 61 287 SCRA 554, 567 (1998).
[35]LPBS Commercial, Inc. v. Hon. Amila, et al., 568 Phil. 182, 188
544 SCRA 199, 205 (2008).

489

Petition partly granted, resolutions reversed and set

aside.

Notes.The principle of exhaustion of administrative

remedies requires that before a party is allowed to seek the
intervention of the court, it is a precondition that he should
have availed of the means of administrative processes
afforded to him. (Acuzar vs. Jorolan, 617 SCRA 519 [2010])
It is a settled rule that orders granting execution are
interlocutory orders hence, the petitioners should have
filed a petition for certiorari under Rule 65. (Golez vs.
Navarro, 689 SCRA 689 [2013])
o0o

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